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The Supreme Court today struck down a California law that prohibited selling or renting violent video games to minors.
The 2005 California law banned minors from buying and renting violent games that would appeal “to a deviant or morbid interest of minors” or “is patently offensive to prevailing standards in the community as to what is suitable for minors.” The punishment for violating the law was a fine of up to $1,000.
In a 7-2 ruling, the Court said that the California law was (depending on your take) either not specific enough or too specific in its language to keep from violating game makers’ free speech rights.
In the majority opinion, Justice Antonin Scalia writes that the U.S. has no tradition of limited children’s access to depictions of violence. In fact, some of the works we ask children to read in school or expose them to in their preschool years are amazing violent, e.g. Grimm’s Fairy Tales, the Odyssey, the Inferno and Lord of the Flies.
California had argued that video games were a special case, different from other media because of their interactivity. Whereas with books, audio recordings and videos, children are spectators, with video games children act out the violence depicted on screen.
The court didn’t see a significant difference between the media. Like other media protected under the First Amendment, Scalia writes, video games communicate ideas through conventional literary devices and features distinctive to the medium. “That suffices to confer First Amendment protection,” he writes.
As to the newness of the medium, he writes:
And whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.
Justice Samuel Alito and Chief Justice John Roberts, while agreeing with the Court’s decision, were not in line with Scalia’s take on how the Constitution should apply to new media. Urging caution, they wrote:
We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology.
The majority opinion makes special reference to concerns raised by Alito. Justice Alito “has done considerable independent research to identify … video games in which ‘the violence is astounding.’” Alito told the other justices about pixellated mutilations, decapitations, disemboweling, immolations and genocides. But then, the Scalia wonders:
To what end does he relate this? Does it somehow increase the ‘aggressiveness’ that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, Justice Alito’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech — whether it be violence, or gore, or racism — and not its objective effects, may be the real reason for governmental proscription.
Alito is clearly worried about the vivid violence portrayed in many video games today, as well as the means by which players using devices like the Kinect
can enact the violence physically. He says the Court was wrong to dismiss the negative psychological effects of violent video games out of hand.
“When all of the characteristics of video games are taken into account, there is certainly a reasonable basis for thinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast or viewing a video,” Alito writes. “And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different.”
The dissenting justices, Clarence Thomas and Stephen Breyer, based their arguments on the health and wellbeing of children.
Thomas argued that when the First Amendment was drafted, it was unacceptable for someone to speak to a minor without parental consent. “The historical evidence shows that the founding generation believed parents had absolute authority over their minor children,” Thomas writes.
Breyer saw a dissonance between the Court upholding bans against selling pornography to minors while allowing minors to purchase graphically violent video games.
[W]hat sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13 year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restrict- ing sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?
So far as I could tell this morning, Montana has no specific laws regarding video games, but that doesn’t necessarily mean that any kid would feel free to walk into a rental store and grab a copy of Call of Duty: Black Ops, Homefront
or Dead Space 2
without meeting, at the least, some stern looks from the clerk.
So what do you think? Should kids be allowed to rent or buy any kind of game they want? If so, should they also be allowed to buy or rent pornography or other “offensive” content? Discuss in the comments.
Here’s the Supreme Court’s decision